PUBLISHED OPINION
Case No.: 96-0351-CR
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOSEPH C. COLES,
Defendant-Appellant.
Submitted on Briefs: December 3, 1996
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: January 29, 1997
Opinion Filed: January
29, 1997
Source of APPEAL Appeal from a judgment
and order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Kenosha
(If
"Special", JUDGE: DAVID M. BASTIANELLI
so indicate)
JUDGES: Snyder, P.J., Nettesheim and Anderson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, the cause was
submitted on the briefs of Keith A. Findley, assistant state public
defender.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of James E. Doyle, attorney general, and Michael
R. Klos, assistant attorney general.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED January
29, 1997 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0351-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JOSEPH
C. COLES,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Kenosha County: DAVID M. BASTIANELLI, Judge. Judgment modified and, as modified,
affirmed; order affirmed.
Before
Snyder, P.J., Nettesheim and Anderson, JJ.
NETTESHEIM,
J. The principal issue on appeal is whether a
felony sentence imposed against the appellant, Joseph C. Coles, must be deemed
a concurrent sentence as a matter of law.
Coles contends that the challenged sentence must be concurrent because
the trial court did not expressly state that the sentence was consecutive to a
“time served” misdemeanor sentence which the trial court had imposed moments
earlier at the same sentencing hearing.
In
a postconviction ruling, the trial court rejected Coles's argument. Instead, the court ruled that, despite its
failure to expressly label the challenged sentence as consecutive, the
structure of the sentences revealed the court's intent to do so. We uphold this ruling. Since the judgment, like the court's
sentencing remarks, does not reflect that the challenged sentence is a
consecutive sentence, we direct on remand that the judgment be modified to so
state. Subject to that modification, we
affirm the judgment.[1]
Alternatively,
Coles challenges the methodology by which the trial court applied his sentence
credit resulting in the “time served” misdemeanor sentence. However, Coles does not challenge the
misdemeanor sentence itself. Instead,
he contends that this methodology allowed the trial court to interpret the
challenged felony sentence as a consecutive sentence. We conclude that the court did not err in the manner by which it
applied the sentence credit and we affirm the postconviction order which
rejected this challenge.
FACTS
The
facts are not in dispute. In an
information, the State charged Coles with five counts. The first three counts charged felony
offenses of unlawfully delivering a controlled substance pursuant to
§§ 161.41(1)(cm) and 161.16(2)(b), Stats.,
1993-94. The fourth count charged a
further felony offense of unlawfully possessing a controlled substance with
intent to deliver pursuant to §§ 161.41(1m)(cm)1 and 161.16(2)(b). The fifth count charged a misdemeanor
offense of obstructing an officer pursuant to § 946.41(1), Stats.
Pursuant
to a plea agreement, the State dismissed the first two counts of the
information which recited two of the three felony unlawful delivery
charges. In exchange, Coles pled no
contest to count three which alleged the remaining felony unlawful delivery
offense, count four which alleged the felony possession with intent to deliver
offense, and count five which recited the misdemeanor obstructing offense.
At
the sentencing hearing, Coles requested that the trial court place him on
probation. The trial court rejected
this request, explaining why it was necessary to incarcerate Coles.
The
trial court then spoke to the sentences.
First, the court addressed count five, the misdemeanor charge. After determining that Coles was entitled to
credit for 185 days of presentence confinement, the court imposed a “time
served” sentence in that exact amount—185 days.[2]
Next,
the trial court addressed count three, the felony charge of unlawful delivery
of a controlled substance, which produced the challenged sentence. On this count, the court sentenced Coles to
eight years. However, the court did not
expressly state whether this sentence was concurrent or consecutive to the
misdemeanor sentence which the court had imposed moments earlier. The written judgment of conviction is also
silent on this point.
Finally,
the trial court addressed count four, the felony charge of possession with
intent to deliver a controlled substance.
On this count, the court also sentenced Coles to eight years, but
expressly stated that the sentence was consecutive to the eight-year sentence
which Coles challenges on appeal. The
court did not grant sentence credit against either of the felony
sentences.
By
postconviction motion, Coles argued that the 185 days of sentence credit which
the trial court had already allowed against the misdemeanor sentence should
also be credited against the sentence on count three, the sentence “sandwiched”
between the initial misdemeanor sentence and the final felony sentence. Coles based his argument on the trial
court's failure to expressly state that the challenged sentence was consecutive
to the misdemeanor sentence. As a
result, Coles contended that the challenged sentence ran concurrent with the
misdemeanor sentence as a matter of law.
In
support, Coles cited to three sources.
First, he relied on the case law which holds that sentences are deemed
to run concurrent in the absence of a statutory or judicial declaration to the
contrary. See In re
McDonald, 178 Wis. 167, 171, 189 N.W. 1029, 1030 (1922); see also
State v. Rohl, 160 Wis.2d 325, 330-31, 466 N.W.2d 208, 210 (Ct.
App. 1991). Second, he relied on
§ 973.15(1), Stats., which
provides that all sentences are deemed to “commence at noon on the day of
sentence.” Based on these two
authorities, Coles reasoned that the misdemeanor sentence and the challenged
sentence were concurrent as a matter of law.
Third, in support of his credit request, Coles relied on the case law
which holds that a defendant is entitled to dual credit for presentence
confinement when concurrent sentences are imposed. See State v. Ward, 153 Wis.2d 743, 746-47,
452 N.W.2d 158, 160 (Ct. App. 1989).
The
trial court rejected Coles's argument.
The court stated that its intent was to impose consecutive, not
concurrent, sentences. Although the
court acknowledged that it had not specifically stated that the challenged
sentence was to be consecutive, the court concluded that the sequence and
structure of the progressive sentences demonstrated the court's intent to that
effect. Having concluded that the
challenged sentence was a consecutive sentence, the court rejected Coles's
request for dual credit, relying on the case law which holds that dual credit
is not allowed as to consecutive
sentences. See State v.
Boettcher, 144 Wis.2d 86, 100-01, 423 N.W.2d 533, 539 (1988). Coles appeals.
DISCUSSION
Consecutive or
Concurrent Sentences
The
State does not dispute the correctness of the legal principles which Coles
cited to the trial court and which he repeats on appeal. Nor do we.
And, if we engaged in a mechanistic application of these principles,
Coles would clearly prevail on this appeal.
But
the law is not a science and the courtroom is not a laboratory. Instead, in addition to these
well-established principles cited by Coles, we also properly look to the intent
of the trial court when imposing the sentences. In some instances, if the court's intent is ambiguous, we will
look to the entire record to determine the court's intent. See State v. Brown, 150
Wis.2d 636, 641-42, 443 N.W.2d 19, 22 (Ct. App. 1989); see also State
v. Lipke, 186 Wis.2d 358, 364, 521 N.W.2d 444, 446 (Ct. App. 1994).
Here,
however, we need not resort to matters beyond the sentencing proceeding itself
to determine the trial court's intent.
Instead, we conclude that the sentencing hearing establishes that the
court intended the challenged sentence to be consecutive to the previously
imposed misdemeanor sentence.
We
acknowledge that § 973.15(1), Stats.,
provides that all sentences are deemed to commence at noon on the day of
sentence. However, the reality of this
case is that the misdemeanor sentence had no prospective effect on Coles
because the sentence was served the moment the trial court uttered it. Given the “time served” structure of the
initial misdemeanor sentence and the progression by which the trial court moved
from sentence to sentence, it logically follows that the challenged felony
sentence could only be consecutive even though the court did not expressly so
say.[3] Viewed in this light, it is not remarkable
that the court did not expressly say that the challenged sentence was a
consecutive sentence.
If
we were to adopt Coles's argument and mechanistically apply the legal principles
upon which he relies, we would thwart the trial court's sentencing
structure. Absent an illegal sentence,
we should not do so. Sentences are to
be individualized to meet the facts of the particular case and the
characteristics of the individual defendant.
See State v. Holloway, 202 Wis.2d 695, 700-01, 551
N.W.2d 841, 844 (Ct. App. 1996).
Coles's approach does not serve this end. Instead, the resulting sentences would be artificial, as if
imposed in a vacuum. See id.
at 701, 551 N.W.2d at 844.
Undoubtedly
the better practice would have been for the trial court to expressly state that
the challenged sentence was a consecutive sentence. But that failing should not undo what nonetheless is clearly
conveyed by the words and the procedure which the court otherwise did use.
We
affirm the trial court's postconviction order denying Coles's request for
sentence credit against the challenged sentence. However, since the judgment, like the court's sentencing remarks,
does not recite that the sentence is consecutive to the misdemeanor sentence,
we direct on remand that the judgment be modified to so state. Subject to that modification, we affirm the
judgment.
Sentence
Credit Methodology
Alternatively,
Coles challenges the method by which the trial court applied his presentence
confinement.
Specifically,
Coles argues that the trial court's methodology ran afoul of Struzik v.
State, 90 Wis.2d 357, 279 N.W.2d 922 (1979). There, after determining that the defendant was entitled to
fourteen days of sentence credit, the trial court imposed a sentence of “five
years and 14 days.” Id.
at 367, 279 N.W.2d at 926. The supreme
court reversed this “peculiar” sentence.
See id. The
court held that “the sentence transparently reveals that the trial court added
to the appropriate sentence the time already served, so that the sentence after
the application of the credit would still constitute the sentence originally
determined.” Id. The court went on to instruct that a
sentencing court should first determine an appropriate sentence and then
determine and credit the presentence confinement. See id.
Because the trial court reversed the process as outlined in Struzik,
Coles argues that the court erred.
We
first observe that Coles did not raise this particular issue in the trial
court. On that threshold basis, we
could deem this issue waived. However,
because Coles intertwines this argument
with the preceding issue, we will address it on the merits.
Coles
contends that the trial court's alleged violation of Struzik,
which created the “time served” sentence, was designed to foreclose the
possibility of the challenged sentence being a concurrent sentence. However, the sentencing tactic which Struzik
condemns is the grant of the required sentence credit in one judicial breath
and the enhancement of the sentence by the same amount in the next. The supreme court said that such a tactic
“transparently reveals” a design to frustrate the defendant's entitlement to
the credit. See Id.
at 367, 279 N.W.2d at 926.
In
this case, we see nothing in the trial court's methodology which reveals or
suggests a suspect motive to deprive Coles of his rightful sentence
credit. Although a “time served”
sentence is not expressly recognized in the statutes, the sentence credit
requirements of the law impliedly recognize and invite such a practice. And, we take judicial notice that trial
courts routinely impose such sentences.
Here,
the trial court granted Coles the full sentence credit to which he was entitled
and then equated that credit with the sentence selected. Under the facts of this case, we fail to see
how such a sentence can even remotely suggest a suspect motivation on the part
of the trial court. This is especially
so when the sentence is less than the maximum authorized by the law and thus
could have exceeded the credit.[4]
CONCLUSION
On
remand, we direct that the judgment of conviction be modified to comport with
the trial court's intent to impose a consecutive sentence. Subject to that modification, we affirm the
judgment. We affirm the order denying
postconviction relief.
By
the Court.—Judgment modified
and, as modified, affirmed; order affirmed.
[1] Although the
multiple counts were addressed at a single sentencing and were recited in a
single information, the cases were filed separately in the circuit court with
separate file numbers. As a result,
separate judgments were entered as to each sentence. Thus, the appellate record includes only the judgment of
conviction which Coles challenges on appeal.
The judgments reciting Coles's conviction on the other counts are not
part of the appellate record.
[3] Coles also
argues that the challenged sentence must be deemed concurrent because the trial
court did expressly say that the final sentence on the further felony was
consecutive. We disagree. As we have explained, the court did not
expressly say that the challenged sentence was consecutive because it
functionally treated the challenged sentence as the only sentence which would
have any prospective effect on Coles.